DECISION

Fair Work Act 2009
s.394 - Application for unfair dismissal remedy

Ms Julie Major
v
Resilience Solutions Pty Ltd
(U2017/11938)

DEPUTY PRESIDENT BEAUMONT

PERTH, 31 JANUARY 2018

Application for an unfair dismissal remedy – small business employer – whether dismissal consistent with the small business fair dismissal code – code met – other relevant matters.

[1] On 9 November 2017, Ms Julie Major (Ms Major) made an application to the Fair Work Commission (Commission) under s.394 of the Fair Work Act 2009 (Cth) (the Act) for a remedy in respect of her dismissal (the Application).

[2] Resilience Solutions Pty Ltd (Resilience) employed Ms Major as a Heavy Duty Safety and Compliance Officer from 2 September 2014. On 20 October 2017, Resilience terminated the employment of Ms Major citing that Ms Major had failed:

● to follow strict guidelines in relation to communication to outside parties and clients resulting in reputational damage and an erosion of brand integrity; and
● to promote the interests of Resilience by actively exposing the company to potential economic loss.

[3] Mr Bill Hutchison, husband of Ms Major, represented Ms Major at hearing. For the Respondent, Mr Mike Bone, Director for Resilience, undertook the representational role.

[4] Resilience lodged a jurisdictional objection to the Application on the basis that it is a Small Business Employer. This decision deals with Resilience’s jurisdictional objection and the Application.

Background

[5] Resilience provides security and compliance services to the Toll Marine Supply Base located in Dampier, Western Australia (Toll). The contractual arrangement between Toll and Resilience is by way of purchase order on a month by month basis.

[6] Other ad hoc work, which arises in the region, includes that at the Bulk Materials Handling Facility wharf, which is located 1km from the Toll Base (BMF). It was said that Woodside owns the BMF and leases it to a variety of maritime businesses. Similar to its arrangements with Toll, Resilience carries out work on the wharf by way of purchase order.

[7] Ms Major had previously worked for Resilience on a casual basis from 17 October 2013 and was subsequently offered a full time position on 29 August 2014.

[8] It was not in dispute that the Security Services Industry Award 2010 covered Ms Major and that Ms Major earned an amount of approximately $89,544 per annum.

[9] Ms Major’s Employment Agreement dated 29 August 2014 provided:

4 Duties and Responsibilities

4.1 You must diligently perform the duties and responsibilities that the employer assigns to you. The employer may vary these duties and responsibilities at any time.

4.2 You must devote your whole time, attention and ability to the business of the employer and the Group.

…4.4 You must

a) perform all duties to the best of your ability at all times;
b) use your best endeavours to promote and protect the interests of the employer at all times; and
c)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FWC 660
Decision Date: 31 JANUARY 2018

CaseChat Overview and Summary

In the matter of Ms Julie Major, the applicant, against Resilience Solutions Pty Ltd, the respondent, the case before the Fair Work Commission involved an application for an unfair dismissal remedy. The applicant, who had been employed by the respondent, a small business, sought relief on the grounds that her dismissal was unfair. The crux of the dispute was whether the dismissal adhered to the provisions of the small business fair dismissal code under the Fair Work Act 2009. The case was adjudicated by the Fair Work Commission.

The central legal issues the Commission had to resolve were whether the dismissal was consistent with the small business fair dismissal code and whether any other relevant matters existed that could influence the fairness of the dismissal. Specifically, the Commission examined if the respondent complied with the procedural requirements outlined in the code when effectuating the dismissal. This included assessing whether Ms Major was given appropriate notice or pay in lieu of notice, and whether the reasons for dismissal were genuine and related to her capacity or conduct.

After careful consideration of the evidence and submissions, the Commission concluded that the dismissal was consistent with the small business fair dismissal code. It was determined that the respondent had adhered to the necessary procedural requirements, providing Ms Major with appropriate notice and ensuring the dismissal was not harsh, unjust, or unreasonable. The Commission also found that the reasons for the dismissal were valid and related to her capacity or conduct. Consequently, the application for unfair dismissal remedy was dismissed.

Orders